You'll remember that a while back there was a day when I had to do a jury on the fly (see Thursday in this post). I am in the midst of appealing part of the decison now and thought I'd post the objection for the main issue I'm raising but the transcript of that just isn't as articulate as I remembered so I thought I'd post my closing argument instead. The names are changed but I left in all the flaws - some are mine, some are in the transcription, and none are pertinent to the appeal so it was not necessary to order a new transcript. Mr. "Smith" is the Defendant.

MR. LAMMERS: Thank you, Your Honor.

May it please the Court, Madame Commonwealth. Ladies and gentlemen, you heard the Commonwealth's attorney come up here and thank you because your being here was essential to the administration of justice. I don't like to think of it that way. That seems more to me like you are a cog in a machine getting them where they want to get them.

I personally like to think that juries are here as a check on the system to keep people from just flowing through. And as such and as this case demonstrates, juries are obviously brought in on the tougher cases. They aren't bought in on the cases where it is very clear somebody walks in, you know, grabs $200 worth of stuff and runs out the door and starts beating the officer as the officer walks up. You know, those are clear cut. You don't see those in front of juries a whole lot of times.

What we have got here now as the Commonwealth said, there is not a whole lot there to argue about the concealment, about that charge. You can go back in and discuss that one and come to whatever conclusion you wish. And I think what you can see today is that everyone has been pretty honest about that.

Mr. Smith, Ms. Jones and the officer, they all talk about how, you know, he had something in his pants. It was a fairly honest statement all around. And I think that you all have to go back and deal with that one, as much as I would like to be able to come up with some wonderful argument so that you wouldn't have to deal with that one. But I think you do. Think about it a little bit.

Now, as the Judge has told you the standard in a criminal case is beyond a reasonable doubt. I like to put that a little bit in perspective. Now, even if you go back today and find Mr. Smith not guilty, you are not slapping the officer in the face with that. Because you have got to understand that the officer is held to a much lower standard. We do that on purpose. We hold them to a standard that is called probable cause. The standard we hold officers to is probable cause, which it means it is less than probable which is kind of a weird way to put it. The way that I like to think of it is there is probably a cause, probably a reason for the officer to do what he did, to file the charge.

In that case, it is one of those things where the fact that the officer filed the charge doesn't mean someone is guilty. We do that on purpose. Because if someone is running out of the bank as the alarm is going off and he has gun in his hands, we really don't want the officer sitting there thinking, okay, that might be the security guard or that might be the bank robber. You know, we don't want to put the officer in danger so we hold them to that lower standard.

The next standard about that would be what we use in civil trials and that is called preponderance of the evidence. That is where something probably is true. I guess we hold only for money, so we only do that probable.

Then, above that there is something called clear and convincing, which for the life of me I have never been able to get anybody to give me a straight definition on it. But it is above probable and below beyond a reasonable doubt.

Beyond a reasonable doubt is if there is not any other reasonable explanation.

You come in today and you have to weigh the witnesses. Now, obviously, Mr. Smith has a stake in this in saying that it happened a certain way. You know, and that is -- We all know that, that is common sense.

The officer comes in and he has made the charge. You know, he is going to come in -- I am not going to say he is going to lie, but he is going to remember it and he is going to say it in a way that is helpful to the case.

Now, the one person we have in here who is not going to go to jail, doesn't reflect on what she has done or anything is the aunt. It really kind of grates on me that we keep getting told that, well, it is possible that, you know, it happened and she didn't see it. It is possible. She is standing, I think she said from about where that witness stand is to here and she never looks away. She sees it.

Now, the officer tries to take control of the situation, as he is trained to do. He tries to take control of the situation. He puts Mr. Smith and grabs his arm. The testimony of both her and Mr. Smith is he grabs it to put it back behind his back, takes control of him, puts him down. I imagine because they were struggling, he is pretty rough with him.

There again, that is an officer taking care of himself and you can't fault him for that. But both of their testimony is that he didn't turn around and punch the officer. We can see the disparity among these two. I think there is a fairly good reason why he wouldn't turn around and punch that officer. It wouldn't be the sanest thing in the world to do.

I think he probably struggled and probably tried to get away. Now, do I think he put the kind of thought the Commonwealth's attorney seems to be thinking about it, you know, oh, my God, I have got to escape and you know get out of the county, get across the state line, go to Mexico, you know?

No, I don't think he was thinking about that. I think he reacted at a gut level. You know, I think he reacted at a gut level and did the wrong thing. But he didn't attack the officer. He tried to get away. He paid the consequences. He went down. He got charged. He is here in front of you ladies and gentlemen.

Now, there is one other thing I would like to go over a little bit. You are told that, you know, that Officer Green has to be engaged in the performance of his public duty as a law enforcement officer. The officer was plainly truthful to you on the stand that at the time he is being paid by Wal-Mart. He was working security for Wal-Mart.

I really don't like to argue about kind of technical things like that, but I think it is something I am obligated to bring before you. He is not getting paid at that point by Chesterfield County. I mean, he is not getting paid by the State or by Chesterfield. He is getting paid by Wal-Mart. He is working for Wal-Mart.

Now, when he goes to intervene, he is intervening for Wal-Mart. Now, he may intervene further down the road because of certain powers he is granted constantly as an officer as long as he is in Chesterfield County. But, if he was constantly twenty-four hours a day, seven days a week an officer and everything he did was as an officer, you know, whether he was getting paid by Chesterfield or not no matter what he was doing, whether he was getting paid by someone else or not, well then there would be no reason for this instruction here that Officer Green was engaged in the performance of his public duties as a law enforcement officer at the time. So, that is something that I think you have to consider. Like I said, I really don't care to argue those things, but I think it is something that has to be brought up to you all.

In the end, ladies and gentlemen, I think this is a tough case because your gut tells you one thing. We all want to believe the officer is right. I mean, it is just a natural instinct. You want to believe the guy in uniform, the guy out there putting his life on the line doing things for us is right.

I am not asking you here to, you know, use your guts so much. I am asking you here to use your mind and analyze what you have been shown. You have been shown one lady here that nothing has been shown that she is not credible. There is nothing that the Commonwealth has shown to you that she is not credible.

They have hung -- Their best argument they have hung on her is, well, it is possible she didn't see it. That doesn't mean she is not credible. I don't think that that statement -- I mean, it is possible that there is a leprechaun inside this thing [the podium] right now. I don't think so. I am not going to open it. But it is possible. Anything is possible. But it is not likely that if she is standing from there to there that she didn't see something as significant as what they are claiming occurred.

At this point I have to concede the podium back to the Commonwealth's attorney and she is going to stand up here and she is going to tell you why I am wrong about everything I just told you. It happens every time. I sit over here and grit my teeth because I can't get back up and say anything. We have to stop it or lawyers can argue all day long everyday.

So, I have to ask you when you go back to think about what I would answer to what she is saying. Put some analysis into it. Think about what has been said, what is going on.

Last week was supposed to be a week of vacation. The State prosecutors were off on one of their semi-yearly private CLEs from Monday thru Thursday (having never been privy to one of these, I can only assume that the prosecutors get together to bad-mouth innocent defense attorneys & plot ways to invalidate those pesky Constitutional rights). It has been at least 2 years since I last took an actual vacation and I wasn't sure exactly what I was going to do but I blocked the week off a couple months back, determined to devote it to doing something non-legal. Then I screwed up and let a judge schedule me for court on the 26th. It wasn't a fatal error; I could get someone to cover one case for me. However, the judge, not having been briefed on my vacation plans, for some reason assumed I'd be in court that day and appointed 3 other clients for me to represent. That killed any real travel plans but I was still determined to take the rest of the week for myself. Then a clerk from the federal district court called the week before and asked me to take a case. As much as I might have wanted the time off there is no way I could turn that down (the federal system pays well enough that a couple cases a month will mean I can pay my bills on time). So, I take the case and have an arraignment in federal district court scheduled for Monday morning. Thus, the stage is set for my week.

Monday: I drive to Richmond a hour early so that I can go to the Marshal's office and speak with my client (I had been unable to get out to see my client in the Outer-Mongolia Regional Jail). Then I go off to the court room to sit and wait for my client's initial arraignment. As I'm sitting there admiring the dark wood carved fasces on the judge's bench, the marshals get my attention and point out that my client's mother and father are there and want to talk to me. I go out in the hall with them and they start telling me about how Client has just gotten a job which he will lose if he does not get a bond. I have to explain to them that he is facing 21-27 years (career offender) and he is not going to get a bond. Then someone sticks his head out of the courtroom and tells me they are calling my client's case so I hustle back in. The initial arraignment is pro-forma and done in less than ten minutes. I turn to my right and shake the prosecutor's hand, exchange pleasantries (he graduated from Washington & Lee Law the same year I did and always seemed like a decent guy), and head down to the Marshal's office to talk to my client again for a few minutes. Then I headed back out to Chesterfield County. I did spend the afternoon in my office but I must admit that most of that time was spent watching DirecTv rather than accomplishing anything.

Tuesday: Having not done paperwork I should have Monday afternoon because of federal filing deadlines I have to go into the office. However, in an act of breathtakingly insignificant defiance, I go to the office in jeans and a t-shirt (not exactly sure whom I was defying as I am the boss, owner and sole employee of Lammers Law Office). While I'm sitting there a call comes in from a federal judge's clerk who is conferencing me with an AUSA and they are trying to bump up a re-arraignment and sentencing under a plea agreement. We all agree to set it for Thursday morning at 10 a.m. Immediately after the conference call ends I attempt to call Client. The entire time I have represented him this client has been easy to reach and he knows that he is supposed to be ready to come in for his court hearing at a moment's notice. Naturally, when I call his number his phone is dead. And it's way too late to send him a letter. Great.

Wednesday: I get up, put on a suit, and (after catching lunch with some buddies) head to my client's home address. I drive, and drive, and drive, and drive, and drive. Finally, off some country road at least ½ hour south of Petersburg I find the address. I walk up to the front door warily eying the “Beware of Dog” and “No Trespassing” signs. When I ring the doorbell my client's mother comes out in her pink bathrobe and is mortified (I interrupted her doing laundry). She lets me in and quickly runs to the back to get some clothes on; the dogs turn out to be a female Lab and the nicest Rotty I've ever met – both of which are extremely interested in sniffing at me because they can smell my dogs and cats. When Mom comes back out she is able to give me Client's cell phone number (woulda been nice if he'd given me that number) and I call him and tell him to be in court the next day.

Driving back up I-95 there is a wreck which keeps me from traveling over 25 mph or getting into the right hand lane to make my turnoff into Chesterfield County. So I end up in Richmond. Trying to make lemons out of that lemonade, I make a trip to the US Attorney's office to pick up discovery on a case which an AUSA told me would be ready Monday. It's not ready. The AUSA comes out apologizes and, when I tell him I will be back on Thursday, tells me he can have it ready by the time I next swing by the office.

Thursday: I arrive at court about 30 minutes early. We all sit around nervously for a while until court starts but the hearing goes off like clockwork, the plea agreement is entered, and my client is sentenced to community service for conspiracy to distribute various drugs. Then I walk 4 blocks over and, lo and behold, the AUSA was true to his word – discovery is waiting for me when I arrive. I go down to the first floor and sit in the cafeteria eating a snack (breakfast) while I read the discovery. Not good. I go back up and ask the AUSA to let me have a copy of the tapes which supposedly corroborate the discovery but he does not have them; he tells me he'll get me a copy as soon as he gets one himself.

In the afternoon I drive out to the rural county I have court in on Friday in order to talk to the prosecutor. Unfortunately, he is still at the prosecutors' CLE ( I had been under the misperception that it ended on Wednesday). I drop off some papers and head back home.

Friday: I head out to the county where I have court. My first client has a show cause for not attending all the sessions of the alcohol safety program mandated because he was convicted of a DUI. He arrives with a pile of receipts showing that his wife was in the hospital at the time due to complications during pregnancy. I present the matter to the judge and she rerefers him to the program. The next client is accused of malicious wounding (maliciously causing bodily harm with intent to maim, disfigure, disable, or kill) which carries a minimum penalty of 5 years although a judge could suspend some of that. The prosecutor offers to drop it to unlawful wounding (unmaliciously causing bodily harm with intent to maim, disfigure, disable, or kill) which carries a maximum penalty of 5 years (in my client's case probably probation). Personally, I do not think my client was guilty of anything more than a battery and would have loved to take it to trial but my client proved more risk adverse than I (probably because it was his rear on the line and not mine) and took the offer. The prosecutor reduced the charge and my client waived his preliminary hearing.

My last two cases were going to take about 5 minutes combined. However, before they were called I had to sit through a long and acrimonious preliminary hearing for a malicious wounding and a trial. I think my clients were called as the last two people on the criminal docket. The first had her case continued for six months. The second had her underage possession of alcohol charge dropped by the prosecutor, pled guilty to a misdemeanor failure to appear in court and got a $50 fine.

By the time I got back to my office it was 2:30 – ½ hour after my Friday open office hours had supposedly begun. A 3L whom I had employed to do some work for me had dropped by at 2 pm to return some papers and get paid. He slipped the papers under the door, left without getting his due, and I felt like a jerk. The rest of the afternoon nobody came by the office despite the fact that I had set specific appointments for two clients during that time.

And that's what a vacation week is like for a criminal defense attorney. C'est la vie.

29 March 2004

Facts: Police get an unsubstantiated tip that a known violent felon plans to kill a couple judges. They go to the guy's trailer and are let in by another resident (entry into the trailer is constitutional). They then go to Gould's bedroom (where the roommate has told them Gould is sleeping) and when they do not find him there conduct a search under his bed and in his two closets (finding firearms). The officers then leave the trailer and later find and arrest Gould who admits possession of the weapons.

The difficulty for the prosecution: The other resident can give the officers leave to enter the trailer but does not have the authority to allow them into Gould's bedroom. On their face both the entry into the bedroom and the subsequent search are unconstitutional.

The offered exception: The officers entered the bedroom and conducted the search as part of a "protective sweep" in order to assure their safety.

The problem with the exception: The officers could not claim probable cause because they only had a tip from a source without established reliability; thus they have to claim they were only there to talk to the guy and had no intent to arrest him. The federal supreme court has only allowed the protective sweep exception to the 4th Amendment during an arrest. The pertinent language in Maryland v. Buie, U.S., 1990, 110 S.Ct. 1093, 1098 is:

[A]s an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

How the appellate court gets around Buie: The 5th Circuit first states that the only reason the arrest language was in Buie was because it was a case involving an arrest; therefore the "arrest" language can be ignored in cases wherein there was no arrest. It blows past all the cases which state that a home is the place of greatest 4th Amendment protections and applies a reasonableness test derived from Buie, Terry, and Michigan v. Long. As always happens under reasonableness tests, the court then finds the officers' search reasonable because officer safety trumps all.

The court cites a number of cases which it claims support its position that protective sweeps are allowed once valid entry into the residence has been gained by an officer (I have not the time to check them but at least a couple appear to be inapposite plain view cases). Even later in the opinion it blows off the trial judge's finding that the police created any danger to themselves by entering the trailer and not picking up Gould later (ie: in the morning when he left for work). The trial court says they can't create a danger and then rely on it to abrogate constitutional guarantees. The appellate court says all the right things about how the officers cannot do such a thing and then makes an excuse for them doing it in this case.

Rule of the case:

Narrowest construction: Once the police have gained a valid constitutional entry into a part of a house, if the police have an articulable suspicion of danger they have a right to search any part of the house where a person could be and they are allowed to enter areas where they would otherwise be committing a clear constitutional violation.

Widest construction: If an officer has a reasonable suspicion that someone dangerous might be in a residence the officer can conduct a sweep of that residence.

Nightmare construction: If an officer is in an area he has a right, "as a precautionary matter and without probable cause or reasonable suspicion", to conduct a protective sweep of the adjoining areas. The court tries to allay this fear in Note 1 but, having witnessed the travesty of post-Long loss of rights by anyone driving a car, I have to wonder.

My Opinion: The trial court had it right when it pointed toward the officers placing themselves in danger and then taking advantage of it to do a protective sweep. Herein lies the difference between Buie and it's progeny and Gould. There is quite often danger in serving a warrant and thus the deference to officers acting under the color of one. However, if an officer is acting without a warrant, probable cause, or even a report of immediate criminal activity he cannot be allowed to choose an action which places him in danger over safer courses of action and be allowed to violate the constitution because of the choice. How hard could it have been to have someone watch Gould's place overnight and stop him when he came out the next day? Sure it would have been inconvenient but that's far from the primary consideration in a constitutional analysis. This is the point at which the court errs in its constitutional analysis.

However, if the officers come into a dangerous situation through a constitutionally valid activity I think that they are justified in a cursory Buie-style search if there is a reasonable articulable suspicion of danger based upon objective factors. I favor this narrowest interpretation of the case and hope that a wider interpretation (which will be pushed by prosecutors and law enforcement) is not adopted making our houses into places which police can enter and search at whim as Long and its ilk have made our cars.

Becky Dale points this article out on how one should act when pulled over by a police officer. In general it contains some good suggestions (particularly the parts about not giving the officer a statement to work with or letting him search your car) however, there are some sections which must be considered advisedly:

If you have a firearm or other deadly weapon in the car, tell the officer and explain where the weapon is located.

As a safety matter this is probably the safest way to act and if you are going into your glove box to get your registration be certain to tell the officer if there is a gun in it. However, be aware that if a firearm is not in plain sight in the cab of the car you are likely to be charged with having a concealed weapon. Minor facts such as your inability to reach it while it was locked away in a compartment in the right side of your extended cab with no ammunition in the vehicle (much less the firearm) are of no matter. The fact that it is far more responsible to travel with the firearm locked away is no defense either. The only defense is if you have a concealed carry permit. Remember, by not telling the officer about a weapon you are exercising your right not to incriminate yourself; you are also taking a chance that some trigger happy rookie might see a barrel sticking out from under your passenger seat as you lean over to get your registration out of the glove box. Choose your actions carefully.

Women driving alone at night should be extra-cautious when a police car has flashing lights on and the officer is signaling them to pull over. A woman has every right to continue driving in a safe manner to a well-lit area, such as a convenience store lot, a gas station or a shopping center. If the officer is in an unmarked police car or in civilian clothes, the woman should ask him to summon a marked car. If he refuses, use your cell phone to call 911. Before reaching for the phone, however, explain what you are doing; otherwise the officer may think you are going for a weapon.

Turn off the ignition. Turn on the interior lights. Thereafter, keep your hands in plain view.

I see this often suggested. If you choose to act in this manner realize that you will be technically guilty of eluding an officer and probably obstruction of justice. If the lighted area isn't a block or two away you can expect to draw at least one other car and to be subject to a felony stop (two angry officers treating you as they would someone they think has a a firearm and is desperate enough to use it). The article is wrong when it says you have a "right" to act in this manner; you must weigh the pros and cons yourself as to whether you are in a situation where you feel your safety demands that you act outside the law.

For goodness sake, if you suspect you are being pulled over by someone who is not an officer don't wait until you are pulled over to call 911. The window of your car is not going to stop a criminal from getting to you. Call while you are still driving.

If the officer says you are suspected of driving "under the influence" of alcohol, you should always agree to a blood, urine or breath test, even if you are innocent.

ABSOLUTELY NOT!!!

When you are pulled over you should not do any of the tests the officer wants you to take, you should not take the street breath test, you should not even get out of your car unless the officer ORDERS you to exit the vehicle (do not get out at a request). Heck, I've known lawyers who've handed out cards telling the officer that you fully assert your rights and to arrest you or let you go. The cards came with instructions which said that if you were pulled over to get your license and registration in hand, put the card in between them, roll the window down an inch, shove them all out to the officer. This limits the evidence the officer has for probable cause to what he has witnessed while you were driving (it also absolutely ensures that you will be arrested).

Once you are at the station you must choose whether or not to take the breath test. Technically, you are required to because you drove on a street in Virginia. However, the "civil" penalty for not taking the test is loss of your license for a year. The criminal penalty, if your blood alcohol content is above a certain level or this is a 2d+ conviction within a certain number of years, is mandatory jail time or even a felony conviction. You must choose which path you prefer.

Imagine this: You get let out of prison after five years. You get your life in order and start living on the straight and narrow. Then the authorities come back and say, "Oops, our bad, we released you 65 days too soon. You gotta go back."

27 March 2004

Apparently, I am scaring Matt with my stories of the joy of practicing criminal law in Virginia. He specifically links to my last post. Hopefully, I'm not scaring too many of you away. If it's any consolation, I have yet to have the court of appeals accept one of my cases (and some of them took a lot of research and pegged clear errors). I figure somebody out there is probably reading my blawg and waiting until I file a petition with one cite from the 9th Circuit against well settled Virginia and 4th Circuit precedent. Then they'll be able to sit there and torture me for revenge.

In further comment on Matt's post, I must point out that the Virginia Constitution does not exist for those accused of crimes:

"Our courts have consistently held that the protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution." Bennefield v. Commonwealth, 21 Va. App. 729, 739-40, 467 S.E.2d 306, 311 (1996). See also Lowe v. Commonwealth, 230 Va. 346, 348 n.1, 337 S.E.2d 273, 275 n.1 (1985) (explaining that protections under Virginia's Constitution and statutes are "substantially the same as those contained in the Fourth Amendment"); O'Mara v. Commonwealth, 33 Va. App. 525, 535 S.E.2d 175 (2000) (explaining that the protection of the right to free speech is co-extensive with federal constitutional protection). Because the rights guaranteed by the Virginia Constitution and the United States Constitution are co-extensive, we use the same analysis.

You walk into court for a sentencing hearing with a recommended sentence of 1 day to 3 months (Virginia's guidelines are only recommendations). As you stand there, with no prior warning whatsoever, the judge tells you he is going to ignore the guidelines and punish your client more severely because he exercised his right to plead not guilty. You object stating:

I have to object for the record to the Court to consider the fact that he wished and exerted his right to go to trial against him, and not considering the guidelines just because he didn't enter a guilty plea.

And on appeal the Virginia Court of Appeals denies your appeal because you did not properly preserve it:

Burpo argues that the trial court violated his constitutional right to a fair trial and deprived him of his right to liberty without due process under the Fifth, Sixth, and Fourteenth Amendments. He claims these rights were violated at sentencing when the trial judge indicated that he departed from the sentencing guidelines because of Burpo's "not guilty" plea. Burpo contends that the Constitution forbids a trial court from penalizing a defendant for asserting his constitutional rights. See e.g., Griffin v. California, 380 U.S. 609, 614 (1965); Doyle v. Ohio, 426 U.S. 610 (1976).

Upon a review of the record, we find that the constitutional issue Burpo raises on appeal was not properly preserved. Rule 5A:18 states in pertinent part: No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefore at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to constitute a question to be ruled upon on appeal.

The purpose of the rule is to afford the trial court an opportunity to rule intelligently on the issue presented. Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). The rule applies to all types of cases, including those with constitutional rights at issue. See Swann v. Commonwealth, 247 Va. 222, 229, 441 S.E.2d 195, 201 (1994) (consideration barred because objections not based on the constitutional grounds asserted for first time on appeal); Ashby v. Commonwealth, 33 Va. App. 540, 544-45, 535 S.E.2d 182, 185 (2000) (Rule 5A:18 barred consideration of speedy trial issues under United States and Virginia Constitutions); Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (Rule 5A:18 barred consideration of statutory argument not raised in trial court); Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d 438, 441 (1991) (Rule 5A:18 barred consideration of constitutional question not raised in trial court). Burpo did not raise the constitutional issue in the trial court. Furthermore, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18 to allow us to consider the constitutional issues that Burpo asserts for the first time on appeal. "In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred . . . ." Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). Without even a mention of Rule 5A:18 or ends of justice, it is obvious that there is no affirmative showing of cause for invoking the rule.

In other words, although the Defense attorney objected to violations of rights which we all know (at least since out 8th grade Civics course) are constitutionally based and guaranteed - He didn't say the magic words: 6th & 14th Amendments. As well, when surprised by a judge who was not going to follow the guidelines for an unconstitutional reason, for some reason the Defense counsel did not have all the appropriate caselaw at hand to cite in order to preserve his objection. I'm shocked! Shocked, I say! I mean, I know that I come to court each time with a file cabinet full of preprepared briefs which exactly phrase the objection as it must be and then back it up with scads of entirely on point cases.

Yeah Right.

This is usually the most bogus of reasons used by the appellate courts to refuse to hear a case. On the odd occasion it makes sense such as when a lawyer does not raise a 19.2-270.1 objection at trial and later tries to make it his appellate argument. A hyper-technicality raised after a client is found guilty on the facts and the case is combed through for something, anything to appeal. However, in a case such as this, where the objection raises issues which we all clearly recognize a hyper-technicality is used to turn the appeal away. How is this acceptable behavior from the appellate court?

24 March 2004

Monyca wrote to comment on the case where the Defendant slugged his own attorney mid-trial and states that she thinks in New York such an attack might constitute a waiver of counsel. She gave me a case name (Gilchrist v. O'Keefe) but, as I have to pay outrageous fees to use WestLaw's sources outside Virginia, I have not been able to confirm this.

It did get me curious about what the standard for constructive waiver might be in Virginia so I did a little research. It seems that in Virginia most cases of constructive waiver (also called de facto waiver) come from dilatory activities on the part of the Defendant. An example would be Bailey v. Commonwealth:

In the course of Bailey's trial, the trial court appointed three attorneys, sequentially, to represent him. While represented by counsel, Bailey filed pro se motions and insisted on certain unreasonable strategies. Additionally, Bailey failed to cooperate with his attorneys and expressed dissatisfaction with their efforts despite their diligent representation.

Daniel Hall, Bailey's first attorney, filed several speedy trial motions and vigorously argued on Bailey's behalf at trial. Yet, at the outset of trial, Bailey complained that Hall had not subpoenaed certain witnesses. The trial judge did not credit these complaints, observing that Bailey was "talking, rambling on about family members. I assume he would have recourse to write or call his family members if [he] wanted to tell you about it. This matter has continued on, and on, and on, so we're going to proceed with the case." After his conviction, Bailey, in disregard of Hall's status as his attorney, filed various pro se pleadings and also filed a habeas corpus petition alleging Hall's ineffective representation. Hall moved to withdraw, stating that Bailey's conduct made his continued representation impossible. Hall's motion was granted.

The court appointed Paul Bland as Bailey's second attorney. Despite the appointment, Bailey continued to file pro se motions and, almost immediately after his appointment, Bland moved to withdraw, noting that Bailey told him that he had filed "habeas on all of his cases, including the one that counsel previously represented him on in 1992." Bland believed that Bailey's statement "created an adversarial relationship with counsel, and counsel [felt] it appropriate to withdraw." The court granted Bland's motion.

Philip DiStanislao was appointed as Bailey's third attorney. Despite the appointment of yet a third attorney, Bailey filed a pro se pleading on June 1, 1998. Barely more than one month after his appointment, DiStanislao moved to withdraw as counsel because Bailey set forth unreasonable terms and conditions for his representation, requiring him to communicate with Bailey by mail only and not in person. DiStanislao stated that these conditions "ma[de] it impossible for him to provide effective representation for Mr. Bailey as it is extremely unlikely that any positive form of attorney-client relationship can exist."

[Thereafter Bailey represented himself]

While I didn't actually find any examples of a Defendant attacking his counsel I think it would be a constructive waiver of the right to counsel under the test set out in McNair v. Commonwealth:

[Either] (1) the defendant placed his counsel in a position that precluded effective representation and thereby constructively discharged his counsel or (2) through his obstructionist behavior, dilatory conduct, or bad faith, the defendant de facto waived counsel.

I must say that I'm pretty sure that punching your own attorney would be "obstructionist behavior."

Addendum: Monyca wrote back to apologize for not realizing that some of us have to pay for WestLaw. Actually, it's not her fault I couldn't find the case, if I'd have taken 2 whole minutes to look on FindLaw it's right here.

I must admit that I would not have thought it necessary to reargue every single pretrial motion if there is a mistrial and the case goes back for a second trial. However, Virginia's Supreme Court has set forth this rule:

[A] defendant may not assert that rulings made on pre-trial motions prior to a mistrial are binding upon the trial court in a subsequent trial unless the trial court adopts those rulings on its own motion or in addressing a motion of one or both of the parties. In the absence of a ruling in the second trial adopting the rulings of the aborted trial, the defendant is required to renew his motions with specificity in order to preserve the record of the trial court's rulings and the defendant's objections thereto for any subsequent appeal of the retrial.

The question which now comes to mind is this: If you argued a two hour motion to suppress and were denied in the first trial are you ethically obligated to reargue the matter in the retrial (rather than just sending an order for the judge to sign recognizing the rulings of the first trial)? I think you are probably so obligated. Jeepers, won't that be fun and such a boon to judicial efficiency?

The prospect of police being able to force people to give their name on a whim is troubling to me. In almost any jurisdiction, lying to law enforcement is a crime. So you are currently left with two options. You can comply with the officer's request for information which he has no right to or you can stand silent. If Nevada has its way you won't even be able to stand silent.

The bright line standard here is so obvious that it is painful. At any time an officer has the right to briefly detain you to ask you questions. You have the right not to talk to the officer.

Let's be clear here. All your name is to an officer is a proxy. When an officer requests that you identify yourself he is asking you for your criminal and driving records. As well, in the modern age if the officer takes a further interest he can do things such as a Google search (or a search on some law enforcement database) which could yield all sorts of information. As such forcible surrender of your name to an officer can easily be an act which incriminates you. A fairly innocuous example of this might be if someone is not allowed to drink for a year after a DUI conviction and an officer walks up as he leaves the bar and tells him to ID himself.

Of course, you would hope that there is a right for an innocent citizen who doesn't want to disclose his name to refuse as well but I don't think that it exists. After all, we see this sort of reasoning all the time:

"I cannot imagine any responsible citizen would have objected to giving the name.'' - Scalia

So much for the right to be left alone. I guess it's not one of those rights "retained by the people."

Do I think that the Defendant is nuts or trying to cause a mistrial? Probably. Do I think a judge should be able to force an attorney to represent someone who is violent against her will? You gotta be kidding me.

23 March 2004

Thoroughly Modern Monyca doesn't feel as though she can talk about criminal matters on her blog (I can respect that) but she does offer this page of advice for anyone who is ever approached by a police officer:

You know, I swore I'd not volunteer to take cases involving the death penalty until I had at least 5 years under my belt. Well, I'm now in my fifth year so I'm going to have to start thinking seriously about it. It's probably the most important of jobs for a lawyer but it's incredibly time consuming and would seem to be emotionally very draining. Then, if you lose the next several years are spent listening to other lawyers pick apart every single decision you made and declaring you incompetent in appeals and habeus proceedings. And I'm just not cocky enough to believe that I never make mistakes.

Anyway, I don't qualify under the standards set forth to practice capital defense. Of course, almost no one I know qualifies under those standards. I suspect they are quite often waived.

I've been taken to task by Jeff over at SoCal for missing this most important of events in criminal law: Joey Buttafuoco is going to jail. Whatdoya mean that's not big news (or even surprising). It must be big news - the prosecutor's office went to the trouble of announcing it to the world. Of course, I don't know if you could exactly call it bragging; he pled guilty to one count of insurance fraud and had two dropped along with a grand theft charge.

I've been reading some of the report referenced in the last entry and guess what? By virtue of the fact that I make a living doing primarily indigent criminal defense I'm a bottom feeder who provides laughable representation. I also have no self respect and no matter how much experience I have I will never provide quality representation. As well, I'm doing indigent criminal defense only because I am so incompetent that I cannot do anything else in life. (page 52)

21 March 2004

§ The [Richmond Public Defender’s] office uses Windows 95, has old computers and very slow internet access. Until recently, the office had just two printers for the entire office, which spans the floor of a downtown office building. Now the office has three printers. There is no IT person on staff; the Public Defender Commission has two IT staff members for the 21 public defender offices. When they get “new” equipment, it is typically left-over castoffs the Public Defender Commission has accumulated: a “new computer” can be four years old. Unlike the Commonwealth Attorney’s office, the Public Defender staff lacks the capacity to view digital photos from the Medical Examiner’s office. In an age where digital photographic equipment is the standard, the office has two Polaroid cameras and an old video camera. (p.37-38)

. . .

§ In Richmond, a court-appointed attorney who took over 300 appointments in one year told us that they constituted 20% of his income, as he had a largely successful retained criminal practice. We asked how he could provide quality service to both his appointed and retained clients, he said he can’t. “In retained felony cases I work hard to investigate the case, look for witnesses, consider discovery and the use of an outside expert.” In felony cases for court-appointed clients, “I tell them to investigate the case themselves, look for witnesses and if they find them bring them to the office or to court. Frequently I interview the witnesses just before trial and hope they will help the case. Sometimes they screw up the case and I have to scratch around for a plea.” (p.50)

Here's a soap opera: Man accused of forcible sodomy in the Army. Army turns charges over to civilian authorities. Civilian authorities do not pursue the charges. Man re-enlists. Man blows the whistle on misbehavior in his chain of command. Military reopens and pursues the forcible sodomy charges. Man is assigned a Major in JAG to represent him. Major coerces man into homosexual relationship. Major fights so hard that he alienates the prosecution and another defense attorney has to negotiate with the prosecution. Man pleads to lesser charges. Man begins to fight his conviction. Major stands accused of the homosexual relationship and commits suicide.

Actually, the laws aren't really under attack. It's just that these have got to be the most difficult evidentiary laws to apply. We can all think of times when history around an act is very pertinent to the charge and in this sort of charge it could be especially pertinent. To not allow exploration of the history could be an unconstitutional denial of due process or the right to confront. On the other hand to just let the Defense attorney fish through a woman's history in order to destroy her using unrelated sexual activity is just plain evil. Of course evil does not equal unconstitutional. So if you are the judge applying these laws it has got to be agonizingly difficult. On the one hand you have to apply the constitution; on the other hand you are responsible for what the attorney can do to the victim and must apply a law passed by the Legislature meant to protect her.

Which I guess you would do by going out and surveying the local junkies? No, that would probably be hearsay. Maybe you could get a user to come in and testify as to what the price he's paid has been over the last few buys? Whatdoyamean, 5th Amendment? I'm sure that the prosecution would grant him immunity in the interest of justice and, of course, the judge would give heavy weight to his testimony.

Bryan Gates comments on my post from yesterday about the Virginia Legislature adding a layer of bureaucracy rather than actually dealing with the core problem of indigent defense being woefully underpaid:

The Indigent Commission is a typical government response to a problem. When one was started [in North Carolina] the first thing it did was hire an executive director and staff. None of these people represent anyone, indigent or otherwise. That office has an overhead of about $500,000 per year. Then a series of meetings was scheduled.

The commission consisted of judges, legislators, law professors, and a few prominent (i.e. rich) criminal defense lawyers. Page after page of rules were proposed and passed. The forms we filled out to get paid got revised and grew longer. Standards were set. Training was mandated.

While the Indigent Commission was sold to lawyers as a way to improve defense, it was sold to the legislature as a way to control costs. Few law-and-order legislators really care whether defendants get an adequate defense, most can't vote.

None of this solves the true problem. The state does not pay enough to get the job done. North Carolina will eventually shift to a "socialized" criminal justice system. Full-time government employees will handle both prosecution and defense. The public defenders the state hires will have to be paid a decent wage comparable to other government lawyers. This system will provide a sound basic defense for almost all criminal defendants. There will be less legislative griping about costs since full-time state employees are hard to paint as high-living money grubbing lawyers.

The down side is that people like you and I will be out of the loop. We will care less about what happens in criminal court because we never go there. The criminal courts will become the territory of government lawyers. I'm not saying that public defenders can't do a good job. However, overall far fewer lawyers will have any front-line criminal defense experience. That will be a loss to the profession and to justice.

Unfortunately, I think the trend here will eventually be to a public defender system as well. However, I am not convinced that this will solve the problem; I think it may just be a way of hiding it. At least in Virginia, public defender offices are sold to the Legislature as a way to save money. They are expected to live within a budget. This means that there are only so many people in the office and the legislature doesn't want to increase their budget any more than it does the funds for court appointed attorneys. In the end I fear this will lead to a small number of public defenders buried under so much work that - no matter how talented and devoted the attorneys are - proper representation becomes impossible. It's my understanding that the Richmond public defender office got so overloaded early this year that it stopped taking cases. I must say that the one thing I hope is true is that the law will "allow the newly formed commission to set caseload limits for public defender offices."

I also agree that the creation of public defender offices curtail the participation of many others in the system. Of course, there will always be the conflicts when there are multiple defendants but that doesn't leave much room for those outside of the government run system who want to practice criminal law. I note that I have heard from a number of people that prior to the creation of the federal public defender office for the Eastern District of Virginia it was much easier to develop a federal practice. I have been lucky in that I gotten a number of cases since I started practicing there but I know other lawyers who are on the list and have yet to get a case (in fairness, much of this is caused by the quick timeframe of federal work - you are often called and asked about availability for a Friday hearing on Wednesday).

As an aside, I went to this page and according to it (depending on which conversion method used) $233 in 1971 is $851, $1,620, or $2,270 in modern times. The modern era is actually 2003; the site wouldn't allow 2004. The numbers are from GDP deflator, GDP per capita, and GDP - the other two conversions would not work. Now, I am not an economics major so I know I am probably leaving myself open to serious criticism here but even if the numbers aren't exactly right they do tend to show how inadequate the current amount of payment has become.

HELP WANTED: As I will be off visiting W&L Law from Friday to Sunday I invite anyone who is interested to drop me a line and perhaps guest blog. I expect, unless things have changed drastically that there will be a paucity of places to connect to the web in Lexington, Virginia.

People in Richmond want to have big brother put in place because of vandalism. Because it's not like everybody who lives within three counties doesn't know what the Fan is like and there aren't options of moving to more law-abiding communities in Chesterfield County or Powhatan County or Hanover County or . .

Personally, I agree with the idea of generating a list of all the lawyers in the jurisdiction and making every single one of them take a week each. Just picture the $500 a hour partner from a BigLaw firm spending his week in court. I'd feel sorry for the Defendants, the judges, and the prosecutors but I bet the situation would be fixed quickly (especially if the BigLaw partner is forbidden to send an associate in his stead).

12 March 2004

As it was, [the trial] lasted for nineteen weeks. Toward the end, we started receiving good vibes from the twelfth juror, an expressive young lady who was doing everything but winking at us. Then one day Judge Sear abruptly halted the proceedings and sent the jury home early. We were called into chambers and instructed to return in two hours. Oddly, we were told to return via the judges' private elevator in the courthouse basement. We were also instructed not to discuss this cloak and dagger plan with anyone. Slim had to lead Mike Fawer out of chambers before he twisted himself into orbit.

Upon our return, we were ushered into a closed courtroom. and on the witness stand before us sat a man with a paper bag over his head. "What the fuck is this about," Mike whispered as he began to quake again. Judge Sear informed us that an FBI undercover agent, the man with the paper bag over his head, coincidentally had been in a cocktail lounge when he had overheard the twelfth juror say the government's case was weak. Of course, the government was now moving to disqualify her. Mike orbited.

At least we would be given the opportunity to cross-examine the man with the paper bag over his head and, desperately trying to compose ourselves, we were about to embark on this strange new experience when suddenly loud pounding came from the locked courtroom doors. Two news reporters were demanding access. Judge Sear became apoplectic. He demanded to know who had violated the secrecy order. We all proclaimed our innocence. Upon questioning the news reporters through closed doors, the Judge learned that while they had been eating at the Bon Ton the reporters had spotted Al Winters, with his six-foot, six-inch, two hundred fifty pound frame, crossing Magazine Street with a man with a paper bag over his head! Big Al, mostly a drug and gun man, had acted too quickly.

Still without reporters (and almost without Big Al). we commenced cross-examining the man with the paper bag over his head. The tale became even more bizarre. Admitting that the encounter with the twelfth juror had not been his only one. the man with the paper bag over his head incredibly claimed that he had seen her unexpectedly on other nights in other barrooms, one of which was located clear across town. This had been an undercover operation all right, one designed to disqualify the twelfth juror. When the defense engages in this kind of conduct, it's called jury tampering. Most of us were shell-shocked. Carlos [the Defendant], the calmest person in the courtroom, watched with resigned bemusment.

The twelfth juror finally was brought into the closed courtroom and told of the government's accusations. She was devastated. She denied having made any such statements, and swore her impartiality. Judge Sear denied the disqualification motion and, instead, allowed us to decide whether she should continue to serve. We decided to keep her. but undoubtedly the government's outrageous conduct irretrievably intimidated this juror.

This is an interesting book. At times it is downright strange. For instance, at one point the author describes how he wears a dark suit at the beginning of the trial and a progressively lighter one each day until he is wearing a white one at the end of the trial. However, most of it is made up of war stories which are interesting (although the dragon-slayer metaphor gets old pretty quickly). If you are a criminal defense attorney I think you will find this book worth reading.

10 March 2004

In my opinion it does. Craig is born out of the purest of motives but it clearly violates the right to confront. Still, I'd bet that the statutes which Craig validates will survive somehow. There's too much emotion attached to them for even courts to rule rationally.

Congratulations, you're a Throne! A member of the third highest choir, you have the dubious distniction of existing in the realm where the emenations from God begin to take material form. Thus, you are the strangest-looking of God's servants, and are described as a giant wheel with many eyes. This may be more of a reference to your primary function, however, which is to carry justice and the essence of God Himself to the Earth and through the Heavens, than an accurate reflection of your appearance. More than any other angel, you are humble, patient and just- attributes required of one who bears God and His justice as a chariot bears its rider.

When a passenger in someone else's car makes furtive movements in the presence of an officer it does not establish probable cause for an arrest and search. The standard is furtive movement +. However, because the drugs would have been discovered anyway thru the application of the Pringle "arrest everybody in the car" standard when police found cocaine in the back seat they would have arrested the passenger and discovered the drugs in the passenger's pocket. So the trial court was correct when it allowed the drugs into evidence.

09 March 2004

The California Criminal Law Review is out (or at least I just got notified). Articles of note include a defense of the federal prosecutors somewhat quirky refusal to accept "no contest" pleas and a call for the return of felons' right to vote.

You know, articles like this drive me nuts. It tells me enough to get me hooked: a client is suing his former attorney because he found the law that freed him instead of the attorney. However, it never, ever gets to the meat of the matter.

Federal authorities argued that Benu was sentenced in 1991 to more than a year in jail for cocaine possession in Maryland, precluding him from possessing firearms. He had been detained earlier in 2002 on charges of taking AK-47 ammunition across state lines, buying a 9 mm pistol and semiautomatic rifle, and taking a pistol across state lines.

Benu pleaded no contest to the charges in April 2002, but reserved the right to argue whether his gun and ammunition purchases were really illegal.

U.S. District Judge Norman Moon denied Anderson's and Friedman's arguments about whether Benu was allowed to possess a firearm.

Then Benu researched the issue and discovered that the Maryland gun law in question was different at the time of his conviction. Moon had the attorneys submit written arguments, then dismissed the case.

That's as substantive as the story gets. Subsequent Google and Google News searches turned up nothing. For goodness sake if you are going to get me hooked like that let me know what actually happened. These would seem like federal Exile charges but they are effected by a Maryland law? How? Why? AAaarrrrggggg!!!!!!!!!

08 March 2004

Federal Supreme Court:

(1) Iowa v. Tovar: When you waive your right to counsel you cannot try to void the conviction years later because you waived your right to counsel. Seems a little silly that this got as far as it did (must have been good advocacy that carried it).

As to the comments in both above cites about Justice Scalia, I actually prefer his interpretations of criminal law because they are straight forward. He appears to disfavor balancing tests which always seem to come out in the favor of law enforcement (almost seems as though there's a thumb on that scale) and favor in their stead bright line tests. At least that's the impression I get when I read cases like Kyllo where he starts out by pointing out how Katz uses circular reasoning (reasonable expectation of privacy standard - talk about a moving target) and then draws a line at the house as a place of penultimate protection (ed comment: IMHO the person being the ultimate). I also think he favors a straight reading of text (i.e. see his comments on Smith in A Matter of Interpretation on pages 23-24) which I find refreshing after reading some of the amazingly contorted interpretations courts put on statutes in order to uphold convictions. And I don't think he discriminates; if you are wrong, you are wrong - whether you are a Defense attorney or the government.

Will Baude (Crescat Sententia) quotes a part of the decision wherein the Justice points out that the founding fathers didn't trust judges any more than they did other government actors. The best part? "By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design."

Meanwhile, over at I respectfully dissent, Bryan Gates is getting e-mail from judges and other lawyers discussing the decision. The judge's comment is especially interesting.

BTW - no I did not get to her site thru the porn sites she notes. On the other hand WOW. I'd like to say if I were only 20 years younger but in all honesty when I was 18 (back in the bronze age with my C-64) she was outa my league.

Ambush in Bartlette

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.